There's important daylight between those who are critical of the present degree of judicial power in the United States in general and those who are critical of the current Supreme Court, specifically.
The big problem is the overuse of the "emergency" docket to grant stays in the government's favor by wrongly weighing the balance of equities and assessing which party is more likely to suffer irreparable harm. The thumb on the scale is increasingly obvious.
The secondary wrong that flows from this is that appeals courts' thoroughly briefed, cited, argued and reasoned decisions on the merits are being backburnered until the Court chooses to act. And lately it's been extremely dilatory (birthright citizenship anyone?)
In the meantime these unsigned declarations, devoid of detail, leave appeals courts in limbo without guidance.
Lastly, I see an increased tendency to move towards relitigating the facts rather than limiting themselves to arbiting the law -- and that, without briefing or oral argument.
These missteps should IMO be the focus of congressional reform efforts.
I think we all know they choose cases to leave their imprint, emergency docket or not.
In the immunity case, they didn’t want to review the evidence of trump’s criminality. Alito wanted to write a “rule for the ages,” so they made one up.
And The Six keep protecting him. In Trump cases, The Six have overturned 94% of the rulings of federal courts.
Should the Dems retake the House and the Senate in the midterms, they MUST immediately begin impeachment proceedings against Beer Boy Kavanaugh and Sammy “the Shill” Alito and Clarence “RV for Free!” Thomas. The first for perjury, the last two for bribe-receiving. Any new Dem POTUS in 2028 must IMMEDIATELY appoint and confirm 4 new liberal justices. Nobody says we stop at 9 — that is just custom. Kavanaugh and Alito and Thomas MUST GO. Gorsuch can stay, but only if he referred to forever as Weasel Gorsuch. And the Handmaiden can stay but she must submit to any male justice.
If I may draw an analogy from my own professional background, I would compare the checks and balances between the three branches of the US Government with the three-body problem in physics. Unlike the two-body problem this three-body problem has no general closed form solution. There is no explicit formula for the positions of these bodies or their trajectories resulting from their interactions with each other. In the US case of the three bodies of the Congress (currently supine), the President (currently acting as if all- powerful, with any checks and balances on the actions of this office claimed to be illegitimate), and the Supreme Court (seemingly accepting and confirming the President’s position) the implication is that by removing one of the branches (the Supreme Court) the trajectories of the remaining two might lead to an outcome or position that would be very hard to change as the climate of the society changes, which it has enormously over the last 250 years as a result of extraordinary changes in technology and our knowledge, as well as perceptions of the desirable or aspirational relationships between human beings from very different traditions and backgrounds. If this analogy has any credibility, which I leave it to others to evaluate, then a goal of effectively weakening the Supreme Court to the point where it is not a co-equal branch of Government - however detestable the current majority of (In)Justices - is undesirable at best, and perilous and irresponsible at worst, much as some of us might like to see several of them held accountable, impeached, and disgraced, pour encourager (ou décourager) les autres.
If I may, I think your analogy is insightful as far as it goes, but, respectfully, it relies on a much thinner understanding of “checks and balances” than the one that actually structured the USA's Old Republic. The systems thinking of the USA's Old Republic was not primarily thinking in terms of three co-equal federal bodies alone; they were designing a multi-layered, federated balancing system that operated simultaneously across levels (local, state, federal), domains (law, economy, science, education), and peoples. Courts were checked not just by Congress or the President, but by state courts, juries, common-law practice, local enforcement discretion, regional economic autonomy, and decentralized and publicly accessible political parties that embedded legal meaning in lived civic life. This is why the system could absorb immense social, technological, and demographic change without collapsing into either judicial absolutism or executive command. What worries me about arguments that implicitly centralize legitimacy in a small, cordoned off, socially alien judiciary, even when motivated by understandable anger at the current Court, is that they force what ought to be a plural architecture into a single technocratic axis. While I think your analogy of “removing one body from the three-body problem” is smart and useful, I think another great sanger is foregoing a distributed equilibrium with a brittle, elite-managed one that excludes almost all human beings, of all kinds, from meaningful participation in law, economy, and knowledge production alike. When the Old Republic was working at its best it managed difference, ethnic, regional, religious, occupational, by federating authority, not by concentrating it, and that distinction matters far more than the formal survival of any one institution taken in isolation.
Thank you, Mike for your broad perspective on the US system of governance and its checks and balances. I do not claim to have a profound understanding of all the dynamics and the reasoning behind the structure of the US constitution, and as you point out the significance of the federal structure. From my own perspective as a concerned (naturalized) citizen, the 4th and the most important element in this imbroglio is We, the People – Us, who are the sovereign authority. (I am a great admirer of the Declaration of Independence). The most reprehensible aspect of the villains now driving the Supreme Court is how oblivious they have been and are to the predictably increasingly appalling and even lethal consequences of their actions and/or inactions upon members of We, the People. They must know this, yet they act as they have been doing and continue to regardless. That is their indelible and repeated sin, but there seems to be no foreseeable prospect or procedure through which they can or will be held accountable. Or does anyone think that a Supreme Court Justice will ever be impeached and then found guilty? I recall there was some discussion at one point about the case of Case in the first decade of the 19th century.
Hi, thanks for the thoughtful reply! I agree entirely that We, the People should, in am ultimate sense, be the sovereign authority, and that any institution that becomes structurally insulated from the real, lived consequences of its decisions risks moral failure. Where I would gently press is on the conclusion that the absence of a plausible modern impeachment pathway means accountability has vanished in principle. In the Old Republic, accountability was not expected to rest primarily on rare, high-drama removals at the apex; it was achieved through layered exposure, juries, common law develpment, state and local courts, congressional control of jurisdiction and remedies, localized enforcement discretion, more importantly decentralized and publicly accessible political party firmly based in genuine in civic life, and, also very importantly, economic, scientific, and social decentralization that prevented any single interpretive body from monopolizing reality.
When those surrounding structures atrophy, a small number of nodes, such as the Supreme Court, appear omnipotent even if, formally, they is not. That makes impeachment feel like the only imaginable remedy, and it is indeed a blunt and unlikely one, but historically it was a last resort, not the main mechanism. The deeper civilizational error of the present moment is that so many of those intermediate democratic and federal checks have been hollowed out, leaving both the people and the Court trapped in a false binary, either judicial supremacy or institutional collapse. Rebuilding accountability, then, I would suppose, is not about betting everything on the improbable conviction of a justice and more about restoring the federated and dispersed civic, political, and legal ecology that once made it impossible for any important court to be an alien entity.
Below is our Redeclaration that as men of the Republic, we reaffirm that the Coequal Rights of Conscience may not be infringed, that Self Governance is the Supreme Law of these Lands—and that, we do so for the reunification of our Country, as one People with a shared American Identity in common, as we stand against tyranny of all forms.
Regarding the "attack method debate" concerning our SCOTUS, as a non-lawyer, but an old school activist, it seems to me that this issue is exactly what we are facing in every area of government and industry in our country today. That is, what may be considered to be the difference between democracy and authoritarianism, and the best way to address each issue. History has shown that a direct attack in the early stages of the coup, be it with the military or judiciary branches of government, can succeed sooner than those attacks being made later. That is, the longer the regime maintains power, the harder it is to remove!
This has been our worst nightmare, and one that we are now seeing that we were never prepared for its surfacing, despite all of the warnings over a 29 year period. Now we must face the nightmare, truly at a disadvantage, especially since our SCOTUS majority supports this insurrection. Plus, Americans remain free from anyone labeling this coup a war, socially, by the deliberate instigation of segregation, and legally, openly criminal behavior by the Republican Party! One can certainly ask, how can we deal with the coup if we are unable to openly identify it with a name for the citizens?
I won't go into the endless examples used by the Republican Party's ability to control the narrative in this area, but give only one example: the label "Antifa" used to describe those opposing fascism! The correct term for this action is Anti-Fascism," but Republicans were allowed to bastardize the word to eliminate its meaning! That is because we ever accepted the possibility that we were at war and the opposition was actually beginning to change wording to support their coup!
Now, what if we translate these examples into the discussion of the Judicial system and our SCOTUS? Has our SCOTUS been supporting a coup because they believe it to be the correct interpretation of our Constitution, or because they agree with the premise of the Republican Party that war is necessary because white people were slowly losing their majority in America? And that allowing the masses more and more freedoms of choice, from unionization to working from home, to sexual behavior, needed to be stopped, and the nation must be led by the wealthy once again.
Unfortunately, we have a President whose morals ape a Mafia Don rather than even the snobby rich executive! So, added to the war for America's course going forward, we now have an open and legal pay-to-play system with almost no legal boundaries.
Back to the issue here of how to address the SCOTUS, it seems to me that behavior dictates how to describe actions. If we believe that the system remains viable, then we can operate within the system and merely address issues of law. However, if we see the system practiced by the SCOTUS to be presenting support for the coup, and all the actions I mention, then possibly the best approach would be to accept this truth; we are at war, and therefore we need to operate in ways that we think will convince people to actually recognize this, but also support a defence of our democracy!
They effectively did so already. To gut the voting rights act, they essentially had to decide that the 14th and 15th amendments violated some unwritten constitutional principles they suddenly discovered with the gum stuck under their seats.
The Supreme Court is illegitimate. Why do I say that? Not just because of its absurd and obviously politically decisions, but primarily because of its unwillingness to adopt an enforceable ethics code, allowing judges to remain who in an earlier day would have been banished. Sorry, no opinions from a group like this can be accorded legitimacy. The executive branch is also illegitimate. A criminal sits atop it issuing illegal orders everyday to a justice department that’s become a bad joke. The next Congress should boot them all out on 14th Amendment grounds, but probably won’t even try. And the Congress is illegitimate also, the product of gerrymandering, dark money and stilted representation. That California has the same number of senators as Rhode Island is preposterous and only compounded by the filibuster. So the constitution should be dumped, just like the Articles of Confederation were in their day. At least the people back then knew when something needed to be junked.
I look forward to your book greatly, because I am not sure I agree that things with the Court have gone "wrong," per se. I think many people who take an outcome-based view of the actions of our government are doing so both because it is a natural extension of their own primary method of interacting with the government (voting), and because they have difficulty separating out the outcomes from the system itself. Voting is an outcome-based engagement, so many people have a hard time understanding that the Judicial Branch is really not suitable for an outcome-based measurement the same way that Congress and the Executive are. This is harder to grasp because there is no direct way to interact with the Judicial Branch, so we are left with a populace who has no real concept of what engagement with the Judicial Branch would look like outside of something akin to voting.
And I think this is a bit of an issue with the idea of judicial accountability as well. I believe you're correct that unelected judges are fundamental to this Republic, for the very same reasons you stated. But what does accountability that actually redresses the problem (outcome-based evaluation of the courts by the Public) really look like? Placing the appointment of the justices behind the two directly elected branches doesn't seem to be enough. And impeachment is so rarely used period, let alone on Justices. I think there should be very real questions about fitness for office for some of the Justices given their reversal on the balance of the equities as an enabling of a theory of the Executive more akin to the King of England than the President of the United States. But no impeachment proceedings will succeed.
And that's because the root cause of these issues is, in my opinion, political parties. The Parties overarch across branches, creating incentives that the checks and balances would otherwise prevent; and I think there's a strong argument to be made that the Parties have usurped the Constitution in the primacy of incentives faced by not just the members of our Government (outside Independent agencies), and the people themselves.
It's not clear that this can be redressed via accountability to me either. Accountable to whom? The party politics and incentives run the Executive and Legislative Branches. They have leaked into the Judicial Branch as well. So how can accountability be introduced? The mode proposed by Doerfler and Moyn merely pushes us further to the same forces that got us here in the first place. All this is to say, I am excited for your book, and hope the perverse incentives created by this Administration to abandon propriety in our system in favor of achievement of political power do not persist beyond it. And I fear Doerfler and Moyn's solution would just accelerate the adoption and execution of that incentive.
We have a clear case of bad actors, jurists without even the pretense of good faith rulings whose goal is the use the Court’s power to remake the United States according to a far-right vision of what a country should properly be, with a complacent working population, and a safely ensconced ruling class whose wealth is both secure and dominant in all meaningful public arenas. It was out of sympathy for the peasantry that Henry II began his reform of the English judicial system, using “circuit judges” as the peasantry could never get a fair shake from their local barons (who, like our current Court, simply assumed that imperious power was correct in its assumptions.) How ironic that the twelfth century Britons had recourse that we do not!
Ultimately, the Court reflects the balance of societal power. Its members are almost exclusively chosen from elements of the ruling classes, and reflect these class biases in their rulings. The far right has well understood the importance of capturing the Court in order to eliminate a possibly serious challenge to their political program. Such capture began, of course, with Nixon, forcing Fortas off the Court in exchange for the execrable Rehnquist (whose final gift to the United States of American was the drunken wastrel, George W. Bush.) The current fascist alliance of plutocrats and theocrats, perfectly represented on the Supreme Court, are utterly without any principles worthy of the name. Their goal is to consolidate power in such a manner as to allow the sliver of radical elites to stay in power, democracy be damned. This has long been the goal—quite openly stated—of our ruling class: a formal democracy, where one may vote has one pleases but no vital issues are ever decided in favor of the masses because the ruling class retains an effective veto power over all popular decisions. (Including who gets to even be a candidate in the first place!)
Yes. Your writings do make this SCOTUS more accessible and in so doing allow varied opinions, shadows, visibility. Cliffs are excellent vista points, launch ramps, not so much. We are in this together. No Kings. Peace. Christopher and family.
I don't understand how Moyn or Doerfler can argue that eliminating the Court will give "power to the people" (Right On!), given the obvious UNdemocratic nature of the federal government (EC, Senate). That aside,
I'm basically on your side, with some additions. First, we need to reform the Court in order to solve the current problem of partisan dishonesty. That means expanding not just the Court but all the federal courts. Doubling the size would be a start. Other reforms include potentially establishing an age limit for judges or creating term limits; restrictions on the "shadow docket"; and barring the reliance on "evidence" outside the record and not subject to judicial notice. Second, following up on your point about Congressional ability to check the Court, we need both Congress and the Court to recognize that Art. I, Sec. 8, cl. 18 gives Congress the necessary (heh) power to, e.g., establish a code of ethics for the judiciary and make it enforceable. Third, we need a way to take a page from John Hart Ely and limit the judiciary to (a) protecting political rights including the right to vote, (b) protecting the rights of the historically excluded such as women, racial or ethnic minorities, and sexual and gender minorities, (c) statutory interpretation, and (d) assuring due process in judicial proceedings.
I hope everyone who celebrated had a happy Hanukkah celebration.
I support an independent judiciary. I don't know if I would change the basics except for term limits and maybe a retirement age. Judicial ethics reform can fit within the current constitutional text. It would require a major change in constitutional practice.
I understand your caution. BUT. I read your book. A certain major shift occurred after the Kennedy retirement. There is a major problem with PERSONNEL.
Vladeck has opposed court expansion. But the current personnel are a problem. I fear, in effect, that the goal is to ensure car thieves are less reckless with their ill-gotten gains.
And the nice-sounding proposals will both be long shots and will constantly be corrupted by the current personnel. I hope the new book addresses this problem.
Unless the Ds execute a triple play ( Congress and POTUS) nothing is changing, the law says what SCOTUS says it is … you don’t like it, you may have to change your lesson plans
Five decades in the making if not more….
I blame the makeup of the court. Two presidents who lost the popular vote have five confirmed justices on the court.
The big problem is the overuse of the "emergency" docket to grant stays in the government's favor by wrongly weighing the balance of equities and assessing which party is more likely to suffer irreparable harm. The thumb on the scale is increasingly obvious.
The secondary wrong that flows from this is that appeals courts' thoroughly briefed, cited, argued and reasoned decisions on the merits are being backburnered until the Court chooses to act. And lately it's been extremely dilatory (birthright citizenship anyone?)
In the meantime these unsigned declarations, devoid of detail, leave appeals courts in limbo without guidance.
Lastly, I see an increased tendency to move towards relitigating the facts rather than limiting themselves to arbiting the law -- and that, without briefing or oral argument.
These missteps should IMO be the focus of congressional reform efforts.
I think we all know they choose cases to leave their imprint, emergency docket or not.
In the immunity case, they didn’t want to review the evidence of trump’s criminality. Alito wanted to write a “rule for the ages,” so they made one up.
And The Six keep protecting him. In Trump cases, The Six have overturned 94% of the rulings of federal courts.
It’s the six justices who are the problem.
Thanks Steve.
Should the Dems retake the House and the Senate in the midterms, they MUST immediately begin impeachment proceedings against Beer Boy Kavanaugh and Sammy “the Shill” Alito and Clarence “RV for Free!” Thomas. The first for perjury, the last two for bribe-receiving. Any new Dem POTUS in 2028 must IMMEDIATELY appoint and confirm 4 new liberal justices. Nobody says we stop at 9 — that is just custom. Kavanaugh and Alito and Thomas MUST GO. Gorsuch can stay, but only if he referred to forever as Weasel Gorsuch. And the Handmaiden can stay but she must submit to any male justice.
If I may draw an analogy from my own professional background, I would compare the checks and balances between the three branches of the US Government with the three-body problem in physics. Unlike the two-body problem this three-body problem has no general closed form solution. There is no explicit formula for the positions of these bodies or their trajectories resulting from their interactions with each other. In the US case of the three bodies of the Congress (currently supine), the President (currently acting as if all- powerful, with any checks and balances on the actions of this office claimed to be illegitimate), and the Supreme Court (seemingly accepting and confirming the President’s position) the implication is that by removing one of the branches (the Supreme Court) the trajectories of the remaining two might lead to an outcome or position that would be very hard to change as the climate of the society changes, which it has enormously over the last 250 years as a result of extraordinary changes in technology and our knowledge, as well as perceptions of the desirable or aspirational relationships between human beings from very different traditions and backgrounds. If this analogy has any credibility, which I leave it to others to evaluate, then a goal of effectively weakening the Supreme Court to the point where it is not a co-equal branch of Government - however detestable the current majority of (In)Justices - is undesirable at best, and perilous and irresponsible at worst, much as some of us might like to see several of them held accountable, impeached, and disgraced, pour encourager (ou décourager) les autres.
If I may, I think your analogy is insightful as far as it goes, but, respectfully, it relies on a much thinner understanding of “checks and balances” than the one that actually structured the USA's Old Republic. The systems thinking of the USA's Old Republic was not primarily thinking in terms of three co-equal federal bodies alone; they were designing a multi-layered, federated balancing system that operated simultaneously across levels (local, state, federal), domains (law, economy, science, education), and peoples. Courts were checked not just by Congress or the President, but by state courts, juries, common-law practice, local enforcement discretion, regional economic autonomy, and decentralized and publicly accessible political parties that embedded legal meaning in lived civic life. This is why the system could absorb immense social, technological, and demographic change without collapsing into either judicial absolutism or executive command. What worries me about arguments that implicitly centralize legitimacy in a small, cordoned off, socially alien judiciary, even when motivated by understandable anger at the current Court, is that they force what ought to be a plural architecture into a single technocratic axis. While I think your analogy of “removing one body from the three-body problem” is smart and useful, I think another great sanger is foregoing a distributed equilibrium with a brittle, elite-managed one that excludes almost all human beings, of all kinds, from meaningful participation in law, economy, and knowledge production alike. When the Old Republic was working at its best it managed difference, ethnic, regional, religious, occupational, by federating authority, not by concentrating it, and that distinction matters far more than the formal survival of any one institution taken in isolation.
Thank you, Mike for your broad perspective on the US system of governance and its checks and balances. I do not claim to have a profound understanding of all the dynamics and the reasoning behind the structure of the US constitution, and as you point out the significance of the federal structure. From my own perspective as a concerned (naturalized) citizen, the 4th and the most important element in this imbroglio is We, the People – Us, who are the sovereign authority. (I am a great admirer of the Declaration of Independence). The most reprehensible aspect of the villains now driving the Supreme Court is how oblivious they have been and are to the predictably increasingly appalling and even lethal consequences of their actions and/or inactions upon members of We, the People. They must know this, yet they act as they have been doing and continue to regardless. That is their indelible and repeated sin, but there seems to be no foreseeable prospect or procedure through which they can or will be held accountable. Or does anyone think that a Supreme Court Justice will ever be impeached and then found guilty? I recall there was some discussion at one point about the case of Case in the first decade of the 19th century.
Hi, thanks for the thoughtful reply! I agree entirely that We, the People should, in am ultimate sense, be the sovereign authority, and that any institution that becomes structurally insulated from the real, lived consequences of its decisions risks moral failure. Where I would gently press is on the conclusion that the absence of a plausible modern impeachment pathway means accountability has vanished in principle. In the Old Republic, accountability was not expected to rest primarily on rare, high-drama removals at the apex; it was achieved through layered exposure, juries, common law develpment, state and local courts, congressional control of jurisdiction and remedies, localized enforcement discretion, more importantly decentralized and publicly accessible political party firmly based in genuine in civic life, and, also very importantly, economic, scientific, and social decentralization that prevented any single interpretive body from monopolizing reality.
When those surrounding structures atrophy, a small number of nodes, such as the Supreme Court, appear omnipotent even if, formally, they is not. That makes impeachment feel like the only imaginable remedy, and it is indeed a blunt and unlikely one, but historically it was a last resort, not the main mechanism. The deeper civilizational error of the present moment is that so many of those intermediate democratic and federal checks have been hollowed out, leaving both the people and the Court trapped in a false binary, either judicial supremacy or institutional collapse. Rebuilding accountability, then, I would suppose, is not about betting everything on the improbable conviction of a justice and more about restoring the federated and dispersed civic, political, and legal ecology that once made it impossible for any important court to be an alien entity.
Below is our Redeclaration that as men of the Republic, we reaffirm that the Coequal Rights of Conscience may not be infringed, that Self Governance is the Supreme Law of these Lands—and that, we do so for the reunification of our Country, as one People with a shared American Identity in common, as we stand against tyranny of all forms.
Mr. Rowtter, will you please join us?
https://republia.substack.com/p/for-the-preservation-of-freedom-and
Regarding the "attack method debate" concerning our SCOTUS, as a non-lawyer, but an old school activist, it seems to me that this issue is exactly what we are facing in every area of government and industry in our country today. That is, what may be considered to be the difference between democracy and authoritarianism, and the best way to address each issue. History has shown that a direct attack in the early stages of the coup, be it with the military or judiciary branches of government, can succeed sooner than those attacks being made later. That is, the longer the regime maintains power, the harder it is to remove!
This has been our worst nightmare, and one that we are now seeing that we were never prepared for its surfacing, despite all of the warnings over a 29 year period. Now we must face the nightmare, truly at a disadvantage, especially since our SCOTUS majority supports this insurrection. Plus, Americans remain free from anyone labeling this coup a war, socially, by the deliberate instigation of segregation, and legally, openly criminal behavior by the Republican Party! One can certainly ask, how can we deal with the coup if we are unable to openly identify it with a name for the citizens?
I won't go into the endless examples used by the Republican Party's ability to control the narrative in this area, but give only one example: the label "Antifa" used to describe those opposing fascism! The correct term for this action is Anti-Fascism," but Republicans were allowed to bastardize the word to eliminate its meaning! That is because we ever accepted the possibility that we were at war and the opposition was actually beginning to change wording to support their coup!
Now, what if we translate these examples into the discussion of the Judicial system and our SCOTUS? Has our SCOTUS been supporting a coup because they believe it to be the correct interpretation of our Constitution, or because they agree with the premise of the Republican Party that war is necessary because white people were slowly losing their majority in America? And that allowing the masses more and more freedoms of choice, from unionization to working from home, to sexual behavior, needed to be stopped, and the nation must be led by the wealthy once again.
Unfortunately, we have a President whose morals ape a Mafia Don rather than even the snobby rich executive! So, added to the war for America's course going forward, we now have an open and legal pay-to-play system with almost no legal boundaries.
Back to the issue here of how to address the SCOTUS, it seems to me that behavior dictates how to describe actions. If we believe that the system remains viable, then we can operate within the system and merely address issues of law. However, if we see the system practiced by the SCOTUS to be presenting support for the coup, and all the actions I mention, then possibly the best approach would be to accept this truth; we are at war, and therefore we need to operate in ways that we think will convince people to actually recognize this, but also support a defence of our democracy!
I’m waiting for the court to declare parts of the Constitution to be unconstitutional.
They effectively did so already. To gut the voting rights act, they essentially had to decide that the 14th and 15th amendments violated some unwritten constitutional principles they suddenly discovered with the gum stuck under their seats.
The Supreme Court is illegitimate. Why do I say that? Not just because of its absurd and obviously politically decisions, but primarily because of its unwillingness to adopt an enforceable ethics code, allowing judges to remain who in an earlier day would have been banished. Sorry, no opinions from a group like this can be accorded legitimacy. The executive branch is also illegitimate. A criminal sits atop it issuing illegal orders everyday to a justice department that’s become a bad joke. The next Congress should boot them all out on 14th Amendment grounds, but probably won’t even try. And the Congress is illegitimate also, the product of gerrymandering, dark money and stilted representation. That California has the same number of senators as Rhode Island is preposterous and only compounded by the filibuster. So the constitution should be dumped, just like the Articles of Confederation were in their day. At least the people back then knew when something needed to be junked.
Happy holidays to one and all!
I look forward to your book greatly, because I am not sure I agree that things with the Court have gone "wrong," per se. I think many people who take an outcome-based view of the actions of our government are doing so both because it is a natural extension of their own primary method of interacting with the government (voting), and because they have difficulty separating out the outcomes from the system itself. Voting is an outcome-based engagement, so many people have a hard time understanding that the Judicial Branch is really not suitable for an outcome-based measurement the same way that Congress and the Executive are. This is harder to grasp because there is no direct way to interact with the Judicial Branch, so we are left with a populace who has no real concept of what engagement with the Judicial Branch would look like outside of something akin to voting.
And I think this is a bit of an issue with the idea of judicial accountability as well. I believe you're correct that unelected judges are fundamental to this Republic, for the very same reasons you stated. But what does accountability that actually redresses the problem (outcome-based evaluation of the courts by the Public) really look like? Placing the appointment of the justices behind the two directly elected branches doesn't seem to be enough. And impeachment is so rarely used period, let alone on Justices. I think there should be very real questions about fitness for office for some of the Justices given their reversal on the balance of the equities as an enabling of a theory of the Executive more akin to the King of England than the President of the United States. But no impeachment proceedings will succeed.
And that's because the root cause of these issues is, in my opinion, political parties. The Parties overarch across branches, creating incentives that the checks and balances would otherwise prevent; and I think there's a strong argument to be made that the Parties have usurped the Constitution in the primacy of incentives faced by not just the members of our Government (outside Independent agencies), and the people themselves.
It's not clear that this can be redressed via accountability to me either. Accountable to whom? The party politics and incentives run the Executive and Legislative Branches. They have leaked into the Judicial Branch as well. So how can accountability be introduced? The mode proposed by Doerfler and Moyn merely pushes us further to the same forces that got us here in the first place. All this is to say, I am excited for your book, and hope the perverse incentives created by this Administration to abandon propriety in our system in favor of achievement of political power do not persist beyond it. And I fear Doerfler and Moyn's solution would just accelerate the adoption and execution of that incentive.
We have a clear case of bad actors, jurists without even the pretense of good faith rulings whose goal is the use the Court’s power to remake the United States according to a far-right vision of what a country should properly be, with a complacent working population, and a safely ensconced ruling class whose wealth is both secure and dominant in all meaningful public arenas. It was out of sympathy for the peasantry that Henry II began his reform of the English judicial system, using “circuit judges” as the peasantry could never get a fair shake from their local barons (who, like our current Court, simply assumed that imperious power was correct in its assumptions.) How ironic that the twelfth century Britons had recourse that we do not!
Ultimately, the Court reflects the balance of societal power. Its members are almost exclusively chosen from elements of the ruling classes, and reflect these class biases in their rulings. The far right has well understood the importance of capturing the Court in order to eliminate a possibly serious challenge to their political program. Such capture began, of course, with Nixon, forcing Fortas off the Court in exchange for the execrable Rehnquist (whose final gift to the United States of American was the drunken wastrel, George W. Bush.) The current fascist alliance of plutocrats and theocrats, perfectly represented on the Supreme Court, are utterly without any principles worthy of the name. Their goal is to consolidate power in such a manner as to allow the sliver of radical elites to stay in power, democracy be damned. This has long been the goal—quite openly stated—of our ruling class: a formal democracy, where one may vote has one pleases but no vital issues are ever decided in favor of the masses because the ruling class retains an effective veto power over all popular decisions. (Including who gets to even be a candidate in the first place!)
Steve,
Yes. Your writings do make this SCOTUS more accessible and in so doing allow varied opinions, shadows, visibility. Cliffs are excellent vista points, launch ramps, not so much. We are in this together. No Kings. Peace. Christopher and family.
This is a brilliant piece on the problem of this Supreme Court. Thank you! I look forward to your book.
I don't understand how Moyn or Doerfler can argue that eliminating the Court will give "power to the people" (Right On!), given the obvious UNdemocratic nature of the federal government (EC, Senate). That aside,
I'm basically on your side, with some additions. First, we need to reform the Court in order to solve the current problem of partisan dishonesty. That means expanding not just the Court but all the federal courts. Doubling the size would be a start. Other reforms include potentially establishing an age limit for judges or creating term limits; restrictions on the "shadow docket"; and barring the reliance on "evidence" outside the record and not subject to judicial notice. Second, following up on your point about Congressional ability to check the Court, we need both Congress and the Court to recognize that Art. I, Sec. 8, cl. 18 gives Congress the necessary (heh) power to, e.g., establish a code of ethics for the judiciary and make it enforceable. Third, we need a way to take a page from John Hart Ely and limit the judiciary to (a) protecting political rights including the right to vote, (b) protecting the rights of the historically excluded such as women, racial or ethnic minorities, and sexual and gender minorities, (c) statutory interpretation, and (d) assuring due process in judicial proceedings.
I hope everyone who celebrated had a happy Hanukkah celebration.
I support an independent judiciary. I don't know if I would change the basics except for term limits and maybe a retirement age. Judicial ethics reform can fit within the current constitutional text. It would require a major change in constitutional practice.
I understand your caution. BUT. I read your book. A certain major shift occurred after the Kennedy retirement. There is a major problem with PERSONNEL.
Vladeck has opposed court expansion. But the current personnel are a problem. I fear, in effect, that the goal is to ensure car thieves are less reckless with their ill-gotten gains.
And the nice-sounding proposals will both be long shots and will constantly be corrupted by the current personnel. I hope the new book addresses this problem.
Unless the Ds execute a triple play ( Congress and POTUS) nothing is changing, the law says what SCOTUS says it is … you don’t like it, you may have to change your lesson plans